Thompson, T. v. The Cafaro Company ( 2019 )

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NON-PRECEDENTIAL DECISION - SEE SUPERIOR COURT I.O.P. 65.37
TAQUISHA THOMPSON IN THE SUPERIOR COURT
OF PENNSYLVANIA
Appellant
v.
THE CAFARO COMPANY T/D/B/A
MILLCREEK MALL AND MILLCREEK MALL
CORPORATION AND ASC REALTY OF
PENNSYLVANIA INC. T/D/B/A
MILLCREEK MALL COMPANY AND
WARNER MANAGEMENT COMPANY, LTD
Appellees No. 1032 WDA 2018
Appeal from the Judgment Entered June 19, 2018
In the Court of Common Pleas of Erie County
Civil Division at No: 11594-2013
BEFORE: PANELLA, P.J., STABILE, and McLAUGHLIN, JJ.
MEMORANDUM BY STABILE, J.: FILED JUNE 28, 2019
In this premises liability action, Appellant, Taquisha Thompson
(“Thompson”), appeals from the judgment entered on June 19, 2018 in the
Erie County Court of Common Pleas after a jury returned a defense verdict in
favor of Appellee, the Millcreek Mall Corporation (“the Mall”). 1 Appellant
contends the trial court erred by precluding the testimony of her management
systems expert and the testimony of a witness relating to the Mall bus stop
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1 By virtue of a stipulation and joint praecipe for discontinuance filed prior to
trial, the parties dismissed all other defendants from the case. The Mall is the
only appellee in this appeal.
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where Thompson fell, and erred in its instruction relating to the hills and ridges
doctrine and exceptions thereto. Following review, we affirm.
A reading of the record reveals that on March 1, 2013, Thompson rode
an Erie Metropolitan Transit Authority (“EMTA”) bus to the Mall, arriving at
7:50 a.m. Thompson intended to transfer to another EMTA bus that would
take her to Edinboro University where she was a student. As she stepped off
the bus onto the sidewalk at the designated Mall bus stop, Thompson slipped
and fell on a small patch of ice and sustained multiple fractures to her right
ankle.
Thompson initiated this action by complaint filed on June 10, 2013,
alleging, inter alia, that the Mall was negligent in permitting a dangerous
condition to exist on the sidewalk and in failing to supervise or instruct
personnel as to the proper procedure for preventing a dangerous condition on
the sidewalk. The Mall denied it was negligent and, by way of new matter,
alleged that Thompson’s claims were precluded under the hills and ridges
doctrine.2
The case proceeded to trial and, as indicated above, the jury returned a
defense verdict, finding the Mall was not negligent. The trial court denied
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2 From our review of the docket, it appears Thompson did not file a reply to
new matter, even though the new matter was properly endorsed with a notice
to plead.
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Thompson’s motion for post-trial relief. This timely appeal followed. Both
Thompson and the trial court complied with Pa.R.A.P. 1925.
Thompson presents three issues for this Court’s review:
1. Is [Thompson] entitled to a new trial because the trial court
precluded her certified safety professional expert from
testifying about the management systems failures of a large
shopping mall’s method for sidewalk snow/ice removal, which
was the primary contested issue at trial?
2. Did the trial court err in precluding as irrelevant, testimony
from a bus passenger that the bus stop where [Thompson] fell
was never cleared of snow/ice by 8:00 a.m.?
3. Did the trial court err in deciding to give a jury instruction on
the Hills and Ridges Doctrine, and then compound that err (sic)
by giving an instruction that was an inaccurate
statement of law?
A. Was a Hills and Ridges jury instruction supported by the
facts of record?
B. Was the final, written Hills and Ridges jury instruction
given in response to a jury question an inaccurate
statement of the law which constituted fundamental error
and/or mislead the jury?
C. Did [Thompson] waive objection to the trial court’s mid-
deliberations re-instruction on the Hills and Ridges
doctrine?
Appellant’s Brief at 3-4 (emphasis in original).3
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3 We remind Appellant’s counsel that Pa.R.A.P. 2135(d) mandates that a party
file a certificate of compliance for principal briefs exceeding 30 pages in length,
confirming that the brief does not exceed the 14,000 words permitted under
Pa.R.A.P. 2135(a)(1). Appellant’s brief spans 73 pages but does not include
the requisite certificate.
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Thompson’s first and second issues involve evidentiary matters to which
this Court applies an abuse of discretion standard of review. Nobles v.
Staples, Inc., 150 A.3d 110, 113 (Pa. Super. 2016) (“admission of expert
testimony is a matter committed to the discretion of the trial court and will
not be disturbed absent an abuse of that discretion”); Schuenemann v.
Dreemz, LLC, 34 A.3d 94, 101 (Pa. Super. 2011) (“trial court's rulings
regarding the relevancy of evidence will not be overturned absent an abuse of
discretion”). “An abuse of discretion ‘is not merely an error of judgment, but
if in reaching a conclusion the law is overridden or misapplied, or the judgment
exercised is manifestly unreasonable, or the result of partiality, prejudice, bias
or ill-will, as shown by the evidence or the record, discretion is abused.’”
Nobles, 150 A.3d at 113 (quoting Commonwealth v. Walker, 92 A.3d 766,
772-73 (Pa. 2014) (citation omitted)). Further, “[i]n order to find that the
trial court’s evidentiary rulings constituted reversible error, such rulings must
not only have been erroneous but must also have been harmful to the
complaining party.” Oxford Presbyterian Church v. Weil-McLain Co.,
Inc., 815 A.2d 1094, 1100 (Pa. Super. 2003) (quoting Collins v. Cooper,
746 A.2d 615, 619 (Pa. Super. 2000) (additional citations omitted)).
Thompson first argues the trial court erred in precluding testimony of
her management systems expert. Again, we apply an abuse of discretion
standard. Nobles, 150 A.3d at 113.
The trial court noted:
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The crux of Appellant’s case was that the Mall was negligent for
failing to have a protocol requiring the maintenance staff to start
their daily snow removal operation at the point of the bus stop
since people traverse that area first thing in the morning before
the other areas of the mall. Prior to trial, [Thompson] submitted
the expert report of a purported safety expert, David A. Dodge.
Mr. Dodge would have testified that the Mall was negligent
because they did not adopt a wintertime management program
which would have included the inspection, snow removal and ice
management earlier than 6:12 a.m., the time when the first EMTA
bus stopped at the Mall each day.
Trial Court Opinion, 9/14/18, at 3. Prior to trial, the Mall filed a motion in
limine seeking preclusion of Dodge’s testimony, contending that the jury
empaneled in the case would possess the qualifications necessary to
determine whether the Mall took adequate measures to inspect and maintain
its premises, without the assistance of an expert. Motion in Limine, 4/23/18,
at 1-5. Over Thompson’s written objection, the trial court issued an order
granting the motion, finding “Dodge’s opinion concerning the appropriate
procedures for snow and ice removal does not constitute specialized
knowledge unavailable to lay persons.” Order, 5/3/18 at 1 (citing Pa.R.E.
702).
In her summary of argument, Thompson asserted:
The inadequacy of [the Mall’s] management system used to
perform snow/ice removal from its mall premises was the key
issue at trial, and formed the essence of [Thompson’s] theory of
negligence. The mercantile safety planning considerations
involved in that is not something with which the average layperson
would be familiar. The testimony of [Thompson’s] expert would
have assisted the jury in fairly resolving this issue necessary for
assessing negligence.
Appellant’s Brief at 29.
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The trial court based its ruling on Pennsylvania Rule of Evidence 702,
which governs the admissibility of expert testimony and provides:
A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:
(a) the expert’s scientific, technical, or other specialized
knowledge is beyond that possessed by the average layperson;
(b) the expert’s scientific, technical, or other specialized
knowledge will help the trier of fact to understand the evidence or
to determine a fact in issue; and
(c) the expert’s methodology is generally accepted in the relevant
field.
Pa.R.E. 702. As this Court has recognized, “Pennsylvania Rule of Evidence
702 ‘permits expert testimony on subjects concerning knowledge beyond that
possessed by a layperson.’ It is the job of the trial court to ‘assess the expert’s
testimony to determine whether the expert’s testimony reflects the application
of expertise or strays into matters of common knowledge.’” Noble, 150 A.3d
at 114 (quoting Snizavich v. Rohm & Haas Co., 83 A.3d 191, 194 (Pa.
Super. 2013) (additional citations omitted)). “Admissible expert testimony
that reflects the application of expertise requires more than simply having an
expert offer a lay opinion. ‘Testimony does not become scientific knowledge
merely because it was proffered by a scientist.’” Id. (quoting Snizavich, 83
A.3d at 195) (citations omitted). Further,
if all the primary facts can be accurately described to a jury and if
the jury is as capable of comprehending and understanding such
facts and drawing correct conclusions from them as are witnesses
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possessed of special training, experience or observation, then
there is no need for the testimony of an expert.
Brandon v. Ryder Truck Rental, Inc., 34 A.3d 104, 108 (Pa. Super. 2011)
(quoting Reardon v. Meehan, 227 A.2d 667, 670 (Pa. 1967)). “Thus, to be
admissible, the expert testimony must be beyond the knowledge possessed
by a layperson and assist the trier of fact to understand the evidence or
determine a fact in issue.” Walker, 92 A.3d at 780.
The trial court explained,
David A. Dodge would have been called by [Thompson], as her
expert, to testify that the Mall should have, as a policy, removed
the snow and ice at the bus stop before EMTA started dropping off
passengers at 6:12 a.m. Mr. Dodge[] opines in his expert report
as follows:
Ms. Thompson’s incident was directly caused by the failure
of the Millcreek Mall’s management team to establish a
managerial wintertime maintenance program that
adequately provided for the safety of the foreseeable
pedestrian activity on the mall premises under entirely
predictable weather conditions.
The public bus driver let passengers off the bus at an
exterior bus stop that was on the premises of the mall and
which was under the control of the mall employees. The
first bus stopped at the mall at 6:12 a.m. . . . however, the
maintenance superintendent who is in charge of dispatching
the mall maintenance employees for their daily duties, does
not commence to assign their tasks until 7:00 a.m. Even
when there is ice and/or snow to be removed from the mall’s
exterior sidewalks the maintenance crew always starts
(after 7:00 a.m.) in the same place at the west side [of the]
mall and works around the mall, which reportedly takes over
2½ hours to complete. The incident bus stop is on the east
side of the mall and, therefore, would not receive any
shoveling or ice melt until well after 7:50 a.m. after the
public bus had already made six stops at the mall’s bus stop.
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(Dodge Expert Report, p. 3-5). This is a common sense argument
about what areas to shovel first. Dodge’s opinion does not proffer
any specialized technical knowledge. [Thompson] claims that
because the mall is a large commercial operation, the need for a
commercial management snow removal policy is outside the
knowledge of a juror whose experience would be limited to
shoveling his or her own residential property. Yet, the bottom line
is that the Mall should have shoveled the trafficked areas first.
This is not such a technical concept that ordinary people could not
understand it without professional help.
Trial Court Opinion, 9/14/18, at 5-6.
The court referenced excerpts from the cross-examination of a Mall
maintenance employee and determined that Thompson’s counsel “cogently
made the common sense argument that the Mall should have had a policy
requiring that the bus stop was cleared of snow and ice before the other
sidewalks at the Mall.” Id. The court continued, “[Thompson’s] expert would
not have added any additional insight into this theory. Dodge does not have
‘technical knowledge which is beyond that of the average man.’” Id. (quoting
Reardon, 227 A.2d at 670). Permitting Dodge’s testimony would have been
“an invitation for the trier of fact to abdicate its responsibility to ascertain the
facts relying upon the questionable premise that the expert is in a better
position to make such a judgment.” Id. (quoting Commonwealth v. Seese,
517 A.2d 920, 922 (Pa. 1986)). Therefore, the court determined there was
no need for expert testimony under the circumstances and “did not allow Mr.
Dodge to usurp the function of the jury.” Id. at 9 (citing Reardon).
We find no abuse of discretion in the trial court’s conclusions. We agree
the expert’s opinion was unnecessary for the jury to evaluate the evidence
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competently. While decisions from our sister states clearly are not binding on
this Court, the Mall directs us to a case from New Hampshire, in which the
district court similarly precluded Mr. Dodge’s testimony in a case involving a
fall on ice, relying on Fed.R.E. 702, the counterpart to Pa.R.E. 702. See
Appellee’s Brief at 13-14. In Hecht, the court observed:
The court does not doubt that Mr. Dodge is an expert on safety
issues. The problem is not his expertise but his opinion. He has
merely placed an expert sheen on matters well within the jury’s
own ordinary experience and common sense. The report
interweaves legal principles, reported “facts,” common sense and
matters of common knowledge.
The plaintiff reported as a fact that there was one inch of snow
covered ice in the area of his alleged fall. Every adult in New
England (and most kids) know that untreated ice is slippery; that
ice and snow is foreseeable in New Hampshire in January; and
that it makes sense for a business to have an ice/snow treatment
plan including exclusion from the area and/or treatment. The law
requires reasonable steps to protect invitees from foreseeable and
known hazards. In short, every significant area of his report is a
matter of common sense or a legal standard.
Hecht v. Waterville Dev. Corp., 2007 WL 542151, at **2-3 (D.N.H.
February 16, 2007).
We also agree with the trial court’s assessment that the preclusion did
not prejudice Thompson. Through his cross-examination of Mall maintenance
employees, Thompson’s counsel was able to establish the lack of a written
policy for snow and ice removal from Mall sidewalks,4 the procedure followed
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4Testimony established the existence of a written procedure for plowing Mall
parking lots, a task contracted to an outside vendor.
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by the first-shift maintenance employees for as long as anyone could
remember, and the fact that employees never went first to the EMTA bus stop
to shovel or de-ice before following their routine pathway around the Mall
property, beginning near the maintenance garage located on the opposite side
of the Mall. As the trial court recognized, Thompson’s “counsel was able to
make precisely the same point as would have been made by the expert. At
most, [Thompson] would have been deprived, not of the theory, but rather of
the cloak of authority worn by [Thompson’s] safety expert.” Trial Court
Opinion, 9/14/18, at 10. Consequently, even if we were to find the trial court
abused its discretion by precluding the expert testimony, there would be no
basis for disturbing the verdict because the preclusion did not prejudice
Thompson.
We conclude the trial court did not abuse its discretion in precluding the
Dodge testimony under Pa.R.E. 702, and we discern no prejudice to Thompson
by virtue of that preclusion. Thompson’s first issue fails for lack of merit.
In her second issue, Thompson asserts the trial court abused its
discretion by sustaining an objection to her counsel’s question directed to
witness Valerie Lockett-Slupski. Ms. Lockett-Slupski rode to the Mall on the
same bus as Thompson on the day Thompson fell and testified that she had
taken the same EMTA bus to the Mall for several years prior to the day of
Thompson’s fall. Counsel asked the witness how often in the past the bus
stop sidewalk was cleared of ice and snow when the bus arrived at the Mall.
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At that point, Mall counsel objected on the basis of relevance, arguing the only
relevant day was the day of Thompson’s fall. Thompson’s counsel countered
that the testimony was relevant in light of earlier testimony about when and
why Mall employees cleared or did not clear the bus stop area. The trial court
sustained the objection, noting, “[T]he question is what happened on this day
and why. I think the defense has the better of this objection. Close call, but
I’m going to sustain it.” Notes of Testimony, 5/8/18, at 20.5
In its Rule 1925(a) opinion, the trial court looked to Pennsylvania Rule
of Evidence 402, which provides that “[a]ll relevant evidence is admissible,
except as otherwise provided by law. Evidence that is not relevant is not
admissible.” Pa.R.E. 402. The court acknowledged that “[e]vidence is
relevant if it tends to prove or disprove a material fact.” Trial Court Opinion,
9/14/18, at 10 (citing Conroy v. Rosenwald, 940 A.2d 409, 417 (Pa. Super.
2007)). See also Pa.R.E. Rule 401 (“Relevant evidence" means evidence
having “any tendency to make a fact more or less probable than it would be
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5 We note the trial court similarly sustained Thompson’s objection to a
question about other slip and fall incidents posed to the Mall’s maintenance
superintendent by Mall counsel. Notes of Testimony, 5/8/18, at 54. Following
a second similar objection and a sidebar conference, the judge advised the
jury, “Ladies and gentlemen, there’s been an objection that I’ve sustained.
You’re not here to pass judgment on whether the mall is a generally safe place
or not. We’re not going to look to see if there’s been other accidents ever,
those are all not admissible in this trial. So, since we’re not looking at that
we’re not going to hear testimony about whether it’s safe or not. We’re
looking at what happened on this day, that’s what this case is about, nothing
more and nothing less.” Id. at 55-56.
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without the evidence and . . . the fact is of consequence in determining the
action.”).
The trial court observed:
The material fact in question in this case was whether the Mall
was negligent with respect to [Thompson] on the day of the
accident, not whether the Mall had been negligent in removing
snow and ice at other times and dates. Whether Ms. Lockett-
Slupski had observed the bus stop[] cleared in years past was
clearly irrelevant to [Thompson’s] fall.
Id. at 11.
We find no abuse of discretion in the trial court’s determination. We
also note that testimony elicited by Thompson’s counsel from Mall
maintenance employees established their pattern of snow and ice removal
from the Mall’s sidewalks beginning after 7:00 a.m. and following a route that
began on the opposite side of the Mall. As the Mall conceded, “At no place in
the trial did the Mall take the position that the bus stop at which Ms. Thompson
fell was shoveled or treated before 8:00, on the day of the accident or on any
other day.” Appellee’s Brief at 20. While the trial court correctly observed
that the actions taken—or not taken—on the day of Thompson’s fall were at
issue, testimony from Ms. Lockett-Slupski that she had never seen the area
cleared when her bus arrived at the bus stop at 7:50 a.m. would have simply
confirmed the testimony offered by Mall employees. Thompson has failed to
demonstrate that the trial court abused its discretion in sustaining the Mall’s
objection and has failed to establish that she was in any way prejudiced by
the ruling. Thompson’s second issue fails.
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In her third issue, Thompson contends the trial court erred in its jury
instructions relating to the hills and ridges doctrine and exceptions to that
doctrine. As this Court recently reiterated, the doctrine of hills and ridges is
“a long standing and well entrenched legal principle that protects an owner or
occupier of land from liability for generally slippery conditions resulting from
ice and snow where the owner has not permitted the ice and snow to
unreasonably accumulate in ridges or elevations.” Collins v. Philadelphia
Suburban Development Corporation, 179 A.3d 69, 72 (Pa. Super. 2018)
(quoting Biernacki v. Presque Isle Condominium Unit Owners Ass’n,
Inc., 828 A.2d 1114, 1116 (Pa. Super. 2003) (citation omitted)).
As a challenge to jury instructions,
[o]ur standard of review . . . is limited to determining whether the
trial court committed a clear abuse of discretion or error of law
which controlled the outcome of the case. Error in a charge occurs
when the charge as a whole is inadequate or not clear or has a
tendency to mislead or confuse rather than clarify a material
issue. Conversely, a jury instruction will be upheld if it accurately
reflects the law and is sufficient to guide the jury in its
deliberations.
The proper test is not whether certain portions or isolated excerpts
taken out of context appear erroneous. We look to the charge in
its entirety, against the background of the evidence in the
particular case, to determine whether or not error was committed
and whether that error was prejudicial to the complaining party.
In other words, there is no right to have any particular form of
instruction given; it is enough that the charge clearly and
accurately explains the relevant law.
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Pledger by Pledger v. Jannsen Pharmaceuticals, Inc., 198 A.3d 1126,
1146 (Pa. Super. 2018) (quoting James v. Albert Einstein Med. Ctr., 170
A.3d 1156, 1163-64 (Pa. Super. 2017) (additional citation omitted)).
Thompson argues the hills and ridges instruction delivered by the trial
court at the close of evidence was unsupported by the record. She further
contends the trial court’s supplemental instruction was an inaccurate
statement of law. We consider these assertions separately.
Again, under the hills and ridges doctrine, an owner of land is protected
from liability for “generally slippery conditions resulting from ice and snow
where the owner has not permitted the ice and snow to unreasonably
accumulate in ridges or elevations.” Collins, 179 A.3d at 72 (citations
omitted). However, “proof of hills and ridges is not required when the hazard
is not the result of a general slippery condition prevailing in the community,
but of a localized patch of ice.” Harmotta v. Bender, 601 A.2d 837, 842 (Pa.
Super. 1992) (citing, inter alia, Tonik v. Apex Garages, Inc., 275 A.2d 296,
298 (Pa. 1971)).
Thompson first complains that a hills and ridges instruction was not
warranted under the facts of the case. The parties stipulated to weather
statistics from the Erie Airport Official Weather Station reflecting the
precipitation, including light snow and heavy drizzle, that fell on the day before
and morning of Thompson’s fall, as well as the temperatures recorded during
that period. Stipulation, 5/7/18, at ¶¶ 1-7. In addition, the Mall’s incident
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report admitted as an exhibit reflected “icy” conditions at the time of the
incident. Thompson Trial Exhibit 25. Thompson’s witnesses also testified
regarding their own observations of conditions on the morning of Thompson’s
fall, with varying descriptions of icy conditions, “bumpy” ice, snow, clear
pavement, and the existence of four or five icy spots, a few inches in diameter,
in the otherwise clear area around the bus stop. See, e.g., Deposition of
Susan Chismar, 5/30/14, at 10-13, 22;6 and Notes of Testimony, 5/8/18, at
17-24. Thompson herself acknowledged generally cold temperatures and light
snow on the morning she fell, as well as smooth black ice on the bus stop
sidewalk. Notes of Testimony, 5/9/18, at 6-7, 24-25.
The trial court delivered instructions that included duties owed to an
invitee, the hills and ridges doctrine, and exceptions to the hills and ridges
doctrine “where ice is localized and generally slipping (sic) conditions do not
prevail throughout the community.” Jury Instructions, 5/9/18, at 152-61
(quotation at 159). The court explained:
[I]n light of the fact that there had been testimony about snow
both the day before and at the time of the accident, as well as
evidence of generally slippery conditions caused by a light drizzle
the night before the accident and freezing temperatures,
thereafter, the court declined to remove this issue from the jury.
Trial Court Opinion, 9/14/18, at 14. Although we have highlighted certain
aspects of the jury instructions in light of Thompson’s contentions, when we
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6The Chismar deposition testimony was read to the jury and was admitted as
Thompson Exhibit 33.
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look to the charge in its entirety—as we are required to do—against the
background of the evidence, we conclude the charge accurately reflected the
law and was sufficient to guide the jury in its deliberations. See Pledger,
198 A.3d 1146. Therefore, we find the trial court did not abuse its discretion
or commit error of law in the instructions delivered before the jury began its
deliberations.
Thompson also complains that the trial court provided legally inaccurate
supplemental instructions in response to a question from the jurors. Prior to
delivering supplemental instructions, the trial judge met with counsel and
explained that he would provide an oral instruction as well as a written
instruction. The written instruction would include the standard jury
instructions regarding an owner’s duty to an invitee (SSJI 18.40) and
regarding hills and ridges (SSJI 18.90), along with the exceptions to the
doctrine.7 Explaining the exceptions to the jury, the trial indicated the doctrine
does not apply “where the ice is localized and there are no generally slippery
conditions in the community,” or “when the icy condition is caused by the
Defendant’s neglect or by human intervention, prior attempts at removal.”
Notes of Testimony (Jury Instructions), 5/9/18, at 181. The trial judge then
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7 We recognize “[t]he Suggested Standard Jury Instructions themselves are
not binding and do not alter the discretion afforded trial judges in crafting jury
instructions; rather, ‘[a]s their title suggests, the instructions are guides
only.’” Commonwealth v. Simpson, 66 A.3d 254, 274 n.24 (Pa. 2013)
(quoting Butler v. Kiwi, S.A., 604 A.2d 270, 273 (Pa. Super. 1992)).
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provided a written version of the instructions and explained that he had
“shown [it] to the lawyers, I’ve got their approval of the written instructions.”
Id. at 183.
The trial court considered Thompson’s issue waived in light of counsel’s
agreement to the proposed written supplemental instruction. As the court
noted, counsel was provided the opportunity to review and object to the
written instructions before they were submitted to the jury and failed to
object, essentially contending he read the instructions too quickly and failed
to notice any inaccuracy. The objection was first raised in the motion for post-
trial relief and “was too late for the trial court to effectively correct any error
in the jury instructions.” Trial Court Opinion, 9/14/18, at 15. We agree.
“[O]ur courts have made clear that an appellant must make a timely and
specific objection to a jury instruction to preserve for review a claim that the
jury charge was legally or factually flawed.” Stumpf v. Nye, 950 A.2d 1032,
1041 (Pa. Super. 2008) (citations and quotation marks omitted). However,
even if not waived, the issue would fail for lack of merit.
Again, we look at the entirety of the charge. When examining the
particular part of the instruction forming the basis of Thompson’s challenge,
we see, as the trial court observed, that the written instruction “was
essentially cut and pasted from SSJI 18.90. The last three sentences, to which
[Thompson] objects, are directly taken from the last Subcommittee note
attached to SSJI 18.90 entitled ‘Exceptions.’” Id. The court continued,
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explaining that the deviations from the text of the standard jury instructions
included substituting the phrase, “rule covering snow and ice,” for the
technical but potentially confusing term, “hills and ridges doctrine.” Id. at 15-
16. Quoting the language from both the oral and the written supplemental
instructions, the court included its statements about “generally slippery
conditions in the community” and the exception “where ice is localized and
there are no general slippery conditions in the community.” Id. at 16-18.
Thompson takes exception to the court’s use of language such as “no
general slippery conditions” when “the evidence only needs to show that
general slippery conditions were not prevailing in the community.”
Appellant’s Brief at 58 (emphasis in original) (citing Tonik, 275 A.2d at 298).
Again, this Court reviews the charge in its entirety, cognizant there is no right
to have any particular form or precise wording given. See Pledger, supra.
We cannot see that the lack of the specific word “prevailing” renders the
charge inaccurate.8 Moreover, looking that the charge in its entirety, the
“prevailing in the community” language was in fact included in the trial court’s
initial charge. Notes of Testimony, 5/8/18, at 159.
We find no abuse of discretion or error of law with respect to the court’s
original jury instructions. Further, even if not waived, we discern no abuse of
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8 Thompson does not suggest or offer any citation suggesting that “prevailing”
is a legal term.
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discretion or error of law in its supplemental instructions. Thompson’s third
issue fails.
Judgment affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 6/28/2019
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